A GST ‘loop-hole’ revealed – Ian Rodrigues

Ian Rodrigues answers a question about payment of GST on a development of townhouses.  He highlights a loop hole that our questioner might have “inadvertently” stumbled upon subsequently nullifying payment of the tax.
Kevin:  We’re going to answer a question now about GST and development. We received an e-mail, and the gentleman doesn’t want us to mention his name, and that’s fine; we’re happy to do that, so we’ll just take it as noted. The person joining me to answer this question is Ian Rodrigues. Ian is pulled up on the side of the road somewhere. Ian is from Bishop Collins.
Good day, mate. How are you doing.
Ian:  Great, Kevin. Good to be here.
Kevin:  You’re traveling somewhere in the world, but anyway, I’ll just quickly read through this e-mail. This person writes “Our intention was to buy land, build townhouses, and sell for profit. Sales have been slow. We built the townhouses in 2013 and claimed the GST on the build. We have sold a couple of the townhouses and paid the GST on the sales. We have some townhouses left to sell and have not paid the GST claimed back yet on the townhouses that we still hold. These have been rented continuously since 2013 up until now.”
There are three questions for you, Ian, and I’ll give you the first one: “When or do we need to pay back the GST claimed?” Do you want me to give you all three questions firstly and then we’ll go back and answer them? Is that the best way?
Ian:  Let’s get them all in, yes.
Kevin:  Okay. The second question was “Do we still need to pay GST on the sales since they are now more then five years old?” And the third question: “If we keep holding them, can we claim the Div 40 depreciation on these considering we haven’t paid back the GST?”
Okay, first question: “When or do we need to pay back the GST claimed?”
Ian:  Really, to understand what’s going on here, GST has been around a while, but just to recap some of the very basic points, GST is built residential property, and residential property of itself is not GST-able, so it’s not a taxable supply. So, when you buy an existing house, it’s not a taxable supply, so GST doesn’t apply as a simple rule.
But GST applies to new residential property. So, if you’re building new residential property, as our questioner has said, he’s claimed back the GST, and of course, when he sells new residential property, he has a taxable supply and he pays the GST.
What’s happened to our gentleman here is he’s in that in-between phase. He set out with the intention of building, claiming GST, selling, paying GST, and now he’s ended up keeping some of them, presumably because of market conditions. He hasn’t been able to sell them so he rented them.
So, he has to deal with a GST adjustment event. At some point, he either needs to pay back the GST he claimed on those properties, on building them, and retain them as residential property. So, he needs to get advice from his accountant as to when that’s appropriate as to his intention has changed.
Kevin:  So, there’s no specified timeframe on that one?
Ian:  I don’t think there’s a timeframe, Kevin; it’s more about the intention of the person. So, if you no longer intend to sell them, then really… If he did the same deal with the intention of never selling them and buying them to rent, he should never have claimed the GST.
Kevin:  Okay. From what I can read here, it clearly is an indication that he does still want to sell them even though he’s got them rented.
Ian:  Correct. So, that’s okay; his intention is still to sell them at some point, either rented or vacant.
Now, an opportunity that arises with the way the GST legislation works is that once you’ve rented a residential property for five years, it’s no longer considered new residential premises, which means that at the end of five years… And you have to get your dates right here; it’s very specific about when these dates apply from. From when it’s first available for rent, I believe, is the correct date.
If he then sells it after that period, then his obligation to pay GST on the sale price has disappeared.
Kevin:  Okay, that probably answers his second question, doesn’t it? “Do we still need to pay GST on the sale since they’re five years old?”
Ian:  But to be clear, he does have to adjust the GST that he already claimed.
Kevin:  Yes, okay.
Ian:  So, he certainly doesn’t have a GST on the profit, on the value added, which when you think about it, on something that cost you $500,000 excluding GST and you’re selling for $800,000 including GST, it could be around $30,000 of GST net that he’s better off.
Multiply that by five townhouses or whatever you’re working on, and selling it a month or two the wrong side of that date could be a major problem. So, getting advice here about how these rules work is absolutely critical.
Kevin:  Third question – I don’t know if it still applies. “If we keep holding them, can we claim the Div 40 depreciation on these?”
Ian:  Again, if he’s built these properties and now earning income, I believe, yes, he should absolutely be claiming it. It gets really complicated for him here, because you’re entitled to claim these things, but when you sell it, you’re going to need to determine are you selling it for a capital gain? Has your purpose changed, or is it still an income account?
GST is one set of issues, Kevin. Claiming new construction allowance is pretty straightforward, but how he treats the profit on these sales is a major issue. Is it trading stock, is it for pure profit, or was it for capital gains?
This is where people need to get really good advice from their accountants, because the day one that you claim back GST, you really said “I’m setting out to make an income profit here.”
Kevin:  Yes. It’s all about the intent, isn’t it?
Ian:  Right at the beginning. So, even if it changes along the way, you now need to pay back the GST that you claimed and say “My intention has changed; it’s now capital.”
Kevin:  Yes, excellent.
Ian:  So, he has three sets of issues to deal with, and the fourth issue, of course, is what makes sense in the marketplace as a commercial transaction – “Should I be holding? Should I be selling?” – which is the most important decision. But him getting his three-way tax obligations right can add significant value or cost him a lot of money in tax.
Kevin:  Thank you very much, Ian. I appreciate you pulling up on the side of the road to talk to us and for answering that question as well. Thanks for your time, mate.
Ian:  Our pleasure. Thanks. Bye.

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